' RASHEED AHMED RAZVI, J.--The petitioners are presently serving as District Food Controller with the respondents Nos.1 and 2 previously, they all were serving as Ward Rationing Officer, but subsequently in the years 1989, 1993 and 1995 respectively, they were promoted to the post of District Food Controllers. They are aggrieved by the Notification dated 22-8-1995 issued by the Government of Sindh through which the respondent No,3, namely, Syed Mahmood Shah was granted seniority in the rank of Ward Rationing Officer (B16) by virtue of powers conferred on the Provincial Government vide section 4 of the Sindh Civil Servants Act, 1973. Following are the contents of the said Notification:- "No, SOF (V)1(37)/75.--In exercise of the powers conferred under section 4 of the Sindh Civil Servants Act, 1973, the Government of Sindh are pleased to allow seniority in the rest of Ward Rationing Officer (BS-16) to Syed Mahmood Shah with effect from 4-3-1975.
' Accordingly, he will rank junior to Mr. Gulrez (illegible) and senior to Mr. Inayat Ali presently working as Assistant Directors Food."
2. As far as facts of the petition are concerned, the same have been dealt in detail in the memo. Of petition starting from the initial appointment of the respondent No,3 as Ward Rationing Officer (B- 16) in the year 1975 till issuance of the impugned notification by the respondent No,l. In our view, these facts are not relevant for the decision of this petition as the question involved is whether the petitioners are aggrieved parties, if so, whether the remedy available to them is this Constitutional petition or appeal before the Sindh Service Tribunal. We have heard Mr. Abdullah Khatri, Advocate for the petitioners, Mr. Abdul Latif Ansari, Assistant Advocate-General for respondents Nos.1 And 2 and Mr. Anwar Zaheer Jamali, Advocate for respondent No,3.
3. On the question whether the petitioners are aggrieved parties, it was argued by Mr. Abdullah Khatri that in the new seniority list to be prepared in pursuance of Rule 9(1) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, the petitioners are expected to be adversely affected. It was also argued that the question of seniority does not fall within the terms and conditions of service and, therefore, this Constitutional petition is maintainable. He has also argued that since fundamental rights of petitioners are violated by virtue of impugned Notification as such they can seek enforcement of their fundamental rights through this Constitutional petition. In support, he has referred to Article 25 of the Constitution, 1973. In support of these contentions, he has relied on the following reported judgments:--
(1) Haji Ghulam Mustafa v. The Secretary of Government Punjab, Lahore and others 1973 PLC 308.
(2) Ch. Abdul Ghafoor and others v. Collector of Central Excise and Land Customs, Lahore and others PLD 1991 SC 58.
(3) Saghir Ahmad v. Federation of Pakistan and 3 others PLD 1976 Lahore 87 overruled in the case of Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539.
(4) Sahibzada Fariduddin Ahmad v. The Province of Punjab and another PLD 1976 Lahore 1310.
(5) Raja Muhammad Sadiq v. Water and Power Development Authority PLD 1978 Lahore 738.
(6) Mian Amanul Mulk v. N.-W.F.P. PLD 1981 Pesh.
1.
(7) Mujeebullah Aijaz v. Director-General, Telephone and Telegraph and others PLD 1980 Quetta 58.
(8) Muttaqi Hussain Rizvi v. Province of Sindh and another PLD 1978 Karachi 703 overruled in the case of Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; and
(9) I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041.
4. Mr. Abdul Latif Ansari, Assistant Advocate-General, Sindh appearing for the respondents Nos. 1 and 2 has raised objection on the maintainability of this petition, on the grounds, firstly that the petitioners are not the aggrieved parties and secondly, that this petition is barred in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. He has also argued that this petition is premature as the cause of action, if any, will accrue to the petitioners after preparation of the seniority list. Mr. Anwar Zaheer Jamali, Advocate for respondent No,3 has also raised objection on the maintainability of this petition by endorsing the arguments of the learned Assistant Advocate- General, Sindh and has referred to section 8 of the Sindh Civil Servants Act, 1973. He has also stated that the petitioners are Grade-17 officers while the respondent No,3 was granted seniority in Grade-
16. Therefore, such Notification shall not adversely affect the seniority of the petitioners who are all in Grade-17. He has also referred to section 4 of the Sindh Civil Servants Act, 1975 and argued that this provision of law had conferred power on the Government of Sindh to pass any order notwithstanding anything contained in the Act of 1973 or rules framed thereunder.
5. Through this petition, the petitioners are not only seeking reversion of the respondent No,3 but in fact are challenging the seniority list to be prepared by the respondent No,2. The question of their seniority over the respondent No,3 falls within the definition of terms and conditions. It is now well- settled that the dispute of seniority and promotion can be maintained before the Service Tribunal.
In the case of Syed Badruddin and 10 others v. Government of N.-W.F.P. And 11 others PLD 1994 SC 345, it was held that the question relating to determination of eligibility of a civil servant to promotion is not outside the jurisdiction of the Service Tribunal constituted under Article 212 of the Constitution and that such question could not be creditor gone into by a Civil Court. In this reported case, the rule laid down in the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129 was followed. For further reference, see the following cases:--
(1) Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539).
(2) Ch. Abdul Ghafoor and others v. Collector of Central Excise and Land Customs, Lahore and others (PLD 1995 SC 58).
6. It was also argued by Mr. Abdul Latif Ansari, learned Assistant Advocate-General, Sindh that the impugned Notification was passed by the Government of Sindh in furtherance of section 4 of the Sindh Civil Servants Act, 1973. According to the learned counsel, this provision of law gives unfettered and unabridged power to the Sindh Government to deal with the case of any civil servant in any manner subject to the proviso that the case of a civil servant shall not be dealt in such a manner less favourable to him than as provided by the Sindh Civil Servants Act, 1973. We would not like to dilate upon this proposition of law at this stage but would like to observe that there is one rider to section 4 of the Act, 1973 which provides that such powers shall be exercised by the Sindh Government if it appears to be "just and equitable". In the present case, the question whether the impugned Notification appears to be just and equitable, in our view, cannot be decided in this petition as it may require recording of some evidence of which the proper forum would be the Sindh Services Tribunal. Here, we would also like to refer section 5 of the Sindh Service Tribunals Act, 1973 as well as Rules 17, 18 and 20 of the Sindh Service Tribunals (Procedure) Rules, 1974 which are complete answer to the procedure for recording evidence before the Service Tribunal.
7. Learned counsel for the petitioners has cited several reported cases but none of them is applicable in the circumstances of the present case. The rule laid down by the Hon'ble Supreme Court in the case of Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 is fully applicable in the circumstances of the instant case. In this reported case, several Customs Officers were promoted through a notification issued by the then Chief Martial Law Administrator late General Muhammad Ziaul Haq against which those persons who were affected by such Notification filed Constitutional petition before this Court. A Division Bench of this Court accepted the petition and set aside the Notification through which late General Ziaul Haq, the then Chief Martial Law" Administrator, promoted the Customs Officers. In appeal before the Supreme Court, order of this Court was set aside and it was held that the matter falls within the purview of Services Tribunal. Relevant portion of the reported judgment is as follows:-- "15. We are, therefore, inclined to hold that the controversy before the High Court was, whether private respondents were eligible for consideration for promotion to Grade-18 as, Assistant Collectors alongwith the private appellants. The above question could not have been decided without reference to the terms on which the private respondents were given higher grade, namely, Grade-17 upon the upgradation of the posts of Appraiser and the Principal Appraisers pursuant to the above order of the late President Muhammad Ziaul Haq, which in turn will involve consideration of the above various notifications, rules relating to the appointment or promotion as Assistant Collectors of Customs and the interpretation of section 3 of the Civil Servants Act etc. The above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and, therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it..."
8. In our view, even in this instant case, the question involved could not be decided without reference to the terms of services on which the petitioners and the respondent No, 3 services are involved. This also involves consideration of the above notification, rules relating to the appointment and promotion as well as interpretation of section 24 of the Sindh Civil Servants Act.
As held in the above-quoted case, it falls within the exclusive jurisdiction of the Service Tribunal.
9. In view of the above authority and for the reason that the petitioners are not aggrieved parties, we are not inclined to interfere with the impugned Notification. As such, this petition is dismissed in limine. However, the petitioners, if so advised, shall be entitled to resort to other remedy available to them as provided under the Sindh Service Tribunals Act, 1973. Consequently, M.A. No, 140/95 has become infructuous which is also hereby dismissed.